Supreme Court of India
People'S Union For Democratic ... vs Union Of India & Others on 18 September, 1982
Article 23 enacts a very important fundamental right in the following terms :
"Art. 23 : Prohibition of traffic in human beings and forced labour-
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State. But there are certain fundamental rights conferred by the Constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. We have already discussed the true scope and ambit of Article 24 in an earlier portion of this judgment and hence we do not propose to say anything more about it. So also we need not expatiate on the proper meaning and effect of the fundamental right enshrined in Article 17 since we are not concerned with that Article in the present writ petition. It is Article 23 with which we are concerned and that Article is clearly designed to protect the individual not only against the State but also against other private citizens. Article 23 is not limited in its application against the State but it prohibits "traffic in human beings and begar and other similar forms of forced labour" practised by anyone else. The sweep of Article 23 is wide and unlimited and it strikes at traffic in human beings and begar and other similar forms of forced labour" wherever they are found. The reason for enacting this provision in the chapter on fundamental rights is to be found in the socio-economic condition of the people at the time when the Constitution came to be enacted. The Constitution makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socio- economic structure of the country and bringing about socio- economic regeneration with a view to reaching social and economic justice to the common man. Large masses of people, bled white by well nigh two centuries of foreign rule, were living in abject poverty and destitution with ignorance and illiteracy accentuating their helplessness and despair. The society had degenerated into a status-oriented hierarchical society with little respect for the dignity of individual who was in the lower rungs of the social ladder or in an economically impoverished condition. The political revolution was completed and it had succeeded in bringing freedom to the country but freedom was not an end in itself, it was only a means to an end, the end being the raising of the people to higher levels of achievement and bringing about their total advancement and welfare. Political freedom had no meaning unless it was accompanied by social and economic freedom and it was therefore necessary to carry forward the social and economic revolution with a view to creating social economic conditions in which every one would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework. It was with this end in view that the constitution makers enacted the Directive Principles of State Policy in Part IV of the Constitution setting out the constitutional goal of a new socio-economic order. Now there was one feature of our national life which was ugly and shameful and which cried for urgent attention and that was the existence of bonded or forced labour in large parts of the country. This evil was the relic of feudal exploitative society and it was totally incompatible with the new egalitarian socio-economic order which, "We the people of India" were determined to build and constituted a gross and most revolting denial of basic human dignity. It was therefore necessary to eradicate this pernicious practice and wipe it out altogether from the national scene and this had to be done immediately because with the advent of freedom, such practice could not be allowed to continue to blight the national life any longer. Obviously, it would not have been enough merely to include abolition of forced labour in the Directive Principles of State Policy, because then the outlaying of this practice would not have been legally enforceable and it would have continued to plague our national life in violation of the basic constitutional norms and values until some appropriate legislation could be brought by the legislature forbidding such practice. The Constitution makers therefore decided to give teeth to their resolve to obliterate and wipe out this evil practice by enacting constitutional prohibition against it in the chapter on fundamental rights, so that the abolition of such practice may become enforceable and effective as soon as the Constitution came into force. This is the reason why the provision enacted in Article 23 was included in the chapter on fundamental rights. The prohibition against "traffic in human beings and begar and other similar forms of forced labour"
is clearly intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice.
The question then is as to what is the true scope and meaning of the expression "traffic in human beings and begar and other similar forms of forced labour" in Article 237 What are the forms of 'forced labour' prohibited by that Article and what kind of labour provided by a person can be regarded as 'forced labour' so as to fall within this prohibition ?
When the Constitution makers enacted Article 23 they had before them Article of the Universal Declaration of Human Rights but they deliberately departed from its language and employed words which would make the reach and content of Article 23 much wider than- that of Article 4 of the Universal Declaration of Human Rights. They banned 'traffic in human beings which is an expression of much larger amplitude than "slave trade" and they also interdicted "begar and other similar forms of forced labour". The question is what is the scope and ambit of the expression 'begar and other similar forms of forced labour ?" In this expression wide enough to include every conceivable form of forced labour and what is the true scope and meaning of the words ''forced labour ?" The word 'begar' in this Article is not a word of common use in English language. It is a word of Indian origin which like many other words has found its way in the English vocabulary. It is very difficult to formulate a precise definition of the word begar' but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration. Molesworth describes 'begar' as "labour or service exacted by a government or person in power without giving remuneration for it." Wilson's glossary of Judicial and Revenue Terms gives the following meaning of the word 'begar': "a forced labourer, one pressed to carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The Begari, though still liable to be pressed for public objects, now receives pay: Forced labour for private service is prohibited." "Begar" may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for 'it. That was the meaning of the word 'begar' accepted by a Division Bench of the Bombay High Court in S. Vasudevan v. S.D. Mital.(1) 'Begar' is thus clearly a film of forced labour. Now it is not merely 'begar' which is unconstitutionally prohibited by Article 23 but also all other similar forms of forced labour. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights. It is interesting to find that as far back as 1930 long before the Universal Declaration of Human Rights came into being, International Labour organisation adopted Convention No. 29 laying down that every member of the International Labour organisation which ratifies this convention shall "suppress the use of forced or compulsory labour in all its forms" and this prohibition was elaborated in Convention No. 105 adopted by the International Labour organisation in 1957. The words "forced or compulsory labour" in Convention No. 29 had of course a limited meaning but that was so on account of the restricted definition of these words given in Article 2 of the Convention. Article 4 of the European Convention of Human Rights and Article 8 of the International Covenant on Civil and Political Rights also prohibit forced or compulsory labour. Article 23 is in the same strain and it enacts a prohibition against forced labour in whatever form it may be found. The learned counsel appearing on behalf of the respondent laid some emphasis on the word 'similar' and contended that it is not every form of forced labour which is prohibited by Article 23 but only such form of forced labour as is similar to 'begar' and since 'begar' means labour or service which a person is forced to give without receiving any remuneration for it, the interdict of Article 23 is limited only to those forms of forced labour where labour or service is exacted from a person without paying any remuneration at all and if some remuneration is paid, though it be inadequate, it would not fall within the words 'other similar forms of forced labour. This contention seeks to unduly restrict the amplitude of the prohibition . against forced labour enacted in Article 23 and is in our opinion not well founded. It does not accord with the principle enunciated by this Court in Maneka Gandhi v. Union of India(2) that when interpreting the provisions of the Constitution conferring fundamental rights, the attempt of the court should be to expand the reach and ambit of the fundamental rights rather than to attenuate their (1) AIR 1962 Bom. 53:
(2) [1978] 2 SCR 621.
meaning and content. It is difficult to imagine that the Constitution makers should have intended to strike only at certain forms of forced labour leaving it open to the socially or economically powerful sections of the community to exploit the poor and weaker sections by resorting to other forms of forced labour. Could there be any logic or reason in enacting that if a person is forced to give labour or service to another without receiving any remuneration at all it should be regarded as a pernicious practice sufficient to attract the condemnation of Article 23, but if some remuneration is paid for it, then it should be outside the inhibition of that Article ? If this were the true interpretation, Article 23 would be reduced to a mere rope of sand, for it would then be the easiest thing in an exploitative society for a person belonging to a socially or economically dominant class to exact labour or service from a person belonging to the deprived and vulnerable section of the community by paying a negligible amount of remuneration and thus escape the rigour of Article 23. We do not think it would be right to place on the language of Article 23 an interpretation which would emasculate its beneficent provisions and defeat the very purpose of enacting them. We are clear of the view that Article 23 is intended to abolish every form of forced labour. The words "other similar forms of forced labour are used in Article 23 not with a view to importing the particular characteristic of 'begar' that labour or service should be exacted without payment of any remuneration but with a view to bringing within the scope and ambit of that Article all other forms of forced labour and since 'begar' is one form of forced labour, the Constitution makers used the words "other similar forms of forced labour." If the requirement that labour or work should be exacted without any remuneration were imported in other forms of forced labour, they p would straightaway come within the meaning of the word 'begar' and in that event there would be no need to have the additional words "other similar forms of forced labour." These words would be rendered futile and meaningless and it is a well recognised rule of interpretation that the court should avoid a construction which as the effect of rendering any words used by the legislature superfluous or redundant. The object of adding these words was clearly to expand the reach and content of Article 23 by including, in addition to 'begar', other forms of forced labour within the prohibition of that Article. Every form of forced labour 'begar' or otherwise, is within the inhibition of Article 23 and it makes no difference whether the per-
son who is forced to give his labour or service to another is remunerated or not. Even if remuneration is paid, labour supplied by a person would be hit by this Article if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion. Take for example a case where a person has entered into a contract of service with another for a period of three years and he wishes to discontinue serving such other person before the expiration of the period of three years. If a law were to provide that in such a case the contract shall be specifically enforced and he shall be compelled to serve for the full period of three years, it would clearly amount to forced labour and such a law would be void as offending Article 23. That is why specific performance of a contract of service cannot be enforced against an employee and the employee cannot be forced by compulsion of law to continue to serve the employer. Of course, if there is a breach of the contract of service, the employee would be liable to pay damages to the employer but he cannot be forced to continue to serve the employer without breaching the injunction of Article 23. This was precisely the view taken by the Supreme Court of United States in Bailv v. Alabama(1) while dealing with a similar provision in the Thirteenth Amendment. There, a legislation enact ed by the Alabama State providing that when a person with intent to injure or defraud his employer enters into a contract in writing for the purpose of any service and obtains money or other property from the employer and without refunding the money or the property refuses or fails to perform such service, he will be punished with of fine. The constitutional validity of this legislation was challenged on the ground that it violated the Thirteenth Amendment which inter alia provides: "Neither slavery nor involuntary servitude shall exist within the United States or any place subject to their jurisdiction". This challenge was upheld by a majority of the Court and Mr. Justice Hughes delivering the majority opinion said:
"We cannot escape the conclusion that although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those . who simply fail or refuse to perform contracts for personal service in liquidation of a debt, and judging its purpose by its effect that it seeks in this way to provide the means of compulsion through which performance of such service may (1) 219 U.S. 219: 55 L. Ed. 191.
be secured. The question is whether such a statute is constitutional".
The learned Judge proceeded to explain the scope and ambit of the expression 'involuntary servitude' in the following words:
"The plain intention was to abolish slavery of whatever name and form and all its badges and incidents, to render impossible any state of bondage, to make labour free by prohibiting that control by which the personal service of one men is disposed of or coerced for another's benefit, which is the essence of involuntary servitude."
Then, dealing with the contention that the employee in that case had voluntarily contracted to perform the service which was sought to be compelled and there was therefore no violation of the provisions of the Thirteenth Amendment, the learned Judge observed:
"The fact that the debtor contracted to perform the labour which is sought to be compelled does not withdraw the attempted enforcement from the condemnation of the statute. The full intent of the constitutional provision could be defeated with obvious facility if through the guise of contracts under which advances had been made, debtors could be held to compulsory service. It is the compulsion of the service that the statute inhibits, for when that occurs, the condition of servitute is created which would be not less involuntary because of the original agreement to work out the indebtedness. The contract exposes the debtor to liability for the loss due to the breach, but not to enforced labour."
and proceeded to elaborate this thesis by pointing out:
"Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the Service of his creditor. The other is forced upon the debtor by some provision of law. But peonage however created, is compulsory service, involuntary servitude. The peon can release himself therefrom, it is true, by the pay-
ment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labour or rendering of services in payment of a debt. In the latter case the debtor though contracting to pay his indebtedness by labour of service, and subject like any other contractor to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the service."
It is therefore clear that even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced by compulsion of law or otherwise to continue to perform such service, as that would be forced labour within the inhibitian of Article 23. This Article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service Vide Pollock v. Williams.(1) The reason is that it offends against human dignity to compel a person to provide labour or service to another if he does not wish to do so, even though it be in breach of the contract entered into by him. There should be no serfdom or involuntary servitude in a free democratic India which respects the dignity of the individual and the worth of the human person. Moreover, in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, a contract of service may appear on its face voluntary but it may, in reality, be involuntary, because while entering into the contract, the employee, by reason of his economically helpless condition, may have been faced with Hobson's choice, either to starve or to submit to the exploitative terms dictated by the powerful employer. It would be a travesty of justice to hold the employee in such a case to the terms of the contract and to compel him to serve the employer even though he may not wish to do so. That would aggravate the inequality and injustice from which the employee even otherwise suffers on account of his economically disadvantaged position and lend the authority of law to the exploitation of the poor helpless employee by the economically powerful employer. Article 23 therefore says that no one shall be forced to (1) 322 U.S. 4:88 Lawyers Edition 1095.
provide labour or service against his will, even though it be under a contract of service.
Now the next question that arises for consideration is whether there is any breach of Article 23 when a person provides labour or service to the State or to any other person and is paid less than the minimum wage for it. It is obvious that ordinarily no one would willingly supply labour or service to another for less than the minimum wager when he knows that under the law he is entitled to get minimum wage for the labour or service provided by him. It may therefore be legitimately presumed that when a person provides labour or service to another against receipt of remuneration which is less than the minimum wage, he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive. What Article 23 prohibits is 'forced labour' that is labour or service which a person is forced to provide and 'force' which would make such labour or service 'forced labour' may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution. Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as 'force' and if labour or service is compelled as a result of such 'force', it would we 'forced labour'. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes hims way, even if the remuneration offered to him is less than the minimum wage. He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly 'forced labour.' There is no reason why the word 'forced' should be read in a narrow and restricted manner so as to be confined only to physical or legal 'force' particularly when the national charter, its fundamental document has promised to build a new socialist republic where there will be socioeconomic justice for all and every one shall have the right to work, to education and to adequate means of livelihood. The constitution makers have given us one of the most remarkable documents in history for ushering in a new socio-economic order and the Constitution which they have forged for us has a social purpose and an economic mission and therefore every word or phrase in the Constitution must be interpreted in a manner which would advance the socio-economic objective of the Constitution. It is not unoften that in capitalist society economic circumstance exert much greater pressure on an individual in driving him to a particular course of action than physical compulsion or force of legislative provision. The word 'force' must therefore be constructed to include not only physical or legal force but also force arising from the compulsion of economic circumstance which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage of course, if a person provides labour or service to another against receipt of the minimum wage, it would not be possible to say that the labour or service provided by him is 'forced labour' because he gets- what he is entitled under law to receive. No inference can reasonably be drawn in such a case that he is forced to provide labour or service for the simple reason that he would be providing labour or service against receipt of what is lawfully payable to him just like any other person who is not under the force of any compulsion. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23. Such a person would be entitled to come to the court for enforcement of his fundamental right under Article 23 by asking the court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied. It is therefore clear that when the petitioners alleged that minimum wage was not paid to the workmen employed by the contractors, the complaint was really in effect and substance a complaint against violation of the fundamental right of the workmen under Article 23.
Before leaving this subject, we may point out with all the emphasis at our command that whenever any fundamental right, which is enforceable against private individuals such as, for example a fundamental right enacted in Article 17 or 23 or 24 is being violated, it is the constitutional obligation of the State to take the necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private indivi- dual who is transgressing the same. Of course, the person whose fundamental right is violated can always approach the court for the purpose of enforcement of his fundamental right, but that cannot absolve the State from its constitutional obligation to see that there is no violation of the fundamental right of such person, particularly. when he belongs to the weaker section humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. The Union of India, the Delhi Administration and the Delhi Development Authority must therefore be held to be under an obligation to ensure observance of these various labour laws by the contractors and if the provisions of any of these labour laws are violated by the contractors, the petitioners indicating the cause of the workmen are entitled to enforce this obligation against the Union of India, the Delhi Administration and the Delhi Development Authority by filing the present writ petition. The preliminary objections urged on behalf of the respondents must accordingly be rejected.
Having disposed of these preliminary objections, we may turn to consider whether there was any violation of the provisions of the Minimum Wages Act 1948, Article 24 of the Constitution, the Equal Remuneration Act 1976, the Contract labour (Regulation and Abolition) Act 1970 and the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979 by the contractors. The Union of India in its affidavit in reply admitted that there were certain violations committed by the contractors but hastened to add that for these violations prosecutions were initiated against the errant contractors and no violation of any of the labour laws was allowed to go unpunished. The Union of India also conceded in its affidavit in reply that Re. 1/- per worker per day was deducted by the jamdars from the wage payable to the workers with the result that the workers did not get the minimum wage of Rh. 9.25 per day, but stated that proceedings had been taken for the purpose of recovering the amount of the short fall in minimum wage from the contractors. No particulars were however given of such proceedings adopted by the Union of India or the Delhi Administration or the Delhi Development Authority. It was for this reason that we directed by our order dated 11th May 1982 that whatever is the minimum wage for the time being or if the wage payable is higher than such wage, shall be paid by the contractors to the workmen directly without the intervention of the jamadars and that the jamadars shall not be entitled to deduct or recover any amount from the minimum wage payable to the workmen as and by way of commission or otherwise. He would also direct in addition that if the Union of India or the Delhi Administration or the Delhi Development Authority finds and for this purpose it may hold such inquiry as is possible in the circumstances that any of the workmen has not received the minimum wage payable to him, it shall take the necessary legal action against the contracts whether by way of prosecution or by way of recovery of the amount of the short-fall. We would also suggest that hereafter whenever any contracts are ' given by the government or any other governmental authority including 2 public sector corporation, it should be ensured by intro ducing a suitable provision in the contracts that wage shall be paid by the contractors to the workmen directly without the intervention of any jamadars or thekadars and that the contractors shall ensure that no amount by way of commission or otherwise is deducted or recovered by the Jamadars from the wage of the workmen. So far as observance of the other labour laws by the contractors is concerned, the Union of India, the Delhi Administration and the Delhi Development Authority disputed the claim of the petitioners that the provisions of these labour laws were not being implemented by the contractors save in a few instances where prosecutions had been launched against the contractors. Since it would not be possible for this Court to take evidence for the purpose of deciding this factual dispute between the parties and we also wanted to ensure that in any event the provisions of these various laws enacted for the benefit of the workmen were strictly observed and implemented by the contractors, we by our order dated 11th May 1982 appointed three ombudsmen and requested them to make periodical inspections of the sites of the construction work for the purpose of ascertaining whether the provisions of these labour laws were being carried out and the workers were receiving the benefits and amenities provided for them under these beneficient statutes or whether there were any violations of these provisions being committed by the contractors so that on the basis of the reports of the three ombudsmen, this Court could give further direction in the matter if found necessary. We may add that whenever any construction work is being carried out either departmentally or through contractors, the government or any other governmental authority including a public sector corporation which is carrying out such work must take great care to see that the provisions of the labour laws are being strictly observed and they should not wait for any complaint to be received from the workmen in regard to nonobservance of any such provision before proceeding to take action against the erring officers or contractor, but they should institute an effective system of periodic inspections coupled with occasional surprise inspections by the higher officers in order to ensure that there are no violations of the provisions of labour laws and the workmen are not denied the rights and benefits to which they are entitled under such provisions and if any such violations are found, immediate action should be taken against defaulting officers or contractors. That is the least which a government or a governmental authority or a public sector corporation is expected to do in a social welfare state.
Supreme Court of India
Bandhua Mukti Morcha vs Union Of India & Others on 16 December, 1983
But the question then arises as to what is the power which may be exercised by the Supreme Court when it is moved by an "appropriate" proceeding for enforcement of a fundamental right. The only provision made by the Constitution makers in this behalf is to be found in clause (2) of Article 32 which confers power on the Supreme Court "to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which-ever may be appropriate, for enforcement of any of the fundamental rights. It will be seen that the power conferred by clause (2) of Article 32 is in the widest terms. It is not confined to issuing the high prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo quarranto, which are hedged in by strict conditions differing from one writ to another and which to quote the words spoken by Lord Atkin in United Australia Limited v. Barclays Bank Ltd. in another context often "stand in the path of justice Clanking their mediavel chains". But it is much wider and includes within its matrix, power to issue any directions, orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. It is not only the high prerogative writs of mandamus, habeas corpus, prohibition, quo warranto and certiorari which can be issued by the Supreme Court but also writs in the nature of these high prerogative writs and therefore even if the conditions for issue of any of these high prerogative writs are not fulfilled, the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress, but would have power to issue any direction, order or writ including a writ in the nature of any high prerogative writ. This provision conferring on the Supreme Court power to enforce the fundamental rights in the widest possible terms shows the anxiety of the Constitution makers not to allow any procedural technicalities to stand in the way of enforcement of fundamental rights. The Constitution makers clearly intended that the Supreme Court should have the amplest power to issue whatever direction, order or writ may be appropriate in a given case for enforcement of a fundamental right. But what procedure shall be followed by the Supreme Court in exercising the power to issue such direction, order or writ ? That is a matter on which the Constitution is silent and advisedly so, because the Constitution makers never intended to fetter the discretion of the Supreme Court to evolve a procedure appropriate in the circums-
tances of a given case for the purpose of enabling it to exercise its power of enforcing a fundamental right. Neither clause (2) of Article 32 nor any other provision of the Constitution requires that any particular procedure shall be followed by the Supreme Court in exercising its power to issue an appropriate direction, order or writ. The purpose for which the power to issue an appropriate direction, order or writ is conferred on the Supreme Court is to secure enforcement of a fundamental right and obviously therefore, whatever procedure is necessary for fulfillment of the purpose must be permissible to the Supreme Court. It is not at all obligatory that an adversarial procedure, where each party produces his own evidence tested by cross examination by the other side and the judge sits like an umpire and decides the case only on the basis of such material as may be produced before him by both parties, must be followed in a proceeding under Article 32 for enforcement of a fundamental right. In fact, there is no such constitutional compulsion enacted in clause (2) of Article 32 or in any other part of the Constitution. It is only because we have been following the adversarial procedure for over a century owing to the introduction of the Anglo-Saxon system of jurisprudence under the British Rule that it has become a part of our conscious as well as sub-conscious thinking that every judicial proceeding must be cast in the mould of adversarial procedure and that justice cannot be done unless the adversarial procedure is adopted. But it may be noted that there is nothing sacrosanct about the adversarial procedure and in fact it is not followed in many other countries where the civil system of law prevails. The adversarial procedure with evidence led either party and tested by cross-examination by the other party and the judge playing a passive role has become a part of our legal system because it is embodied in the Code of Civil Procedure and the Indian Evidence Act. But these statutes obviously have no application where a new jurisdiction is created in the Supreme Court for enforcement of a fundamental right. We do not think we would be justified in imposing any restriction on the power of the Supreme Court to adopt such procedure as it thinks fit in exercise of its new jurisdiction, by engrafting adversarial procedure on it. when the Constitution makers have deliberately chosen not to insist on any such requirement and instead, left it open to the Supreme Court to follow such procedure as it thinks appropriate for the purpose of securing the end for which the power is conferred, namely, enforcement of a fundamental right. The adversarial procedure has, in fact, come in for a lot of criticism even in the country of its origin and there is an increasing tendency even in that country to depart from its strict norms. Lord De lin speaking of the English judicial system said: "If our methods were as antiquated as our legal methods, we should be a bankrupt country". And Foster Q.C. observed : "I think the whole English system is non-sense. I would go to the root of it- the civil case between two private parties is a mimic battle........conducted according to rules of evidence." There is a considerable body of juristic opinion in our country also which believes that strict adherence to the adversarial procedure can some times lead to injustice, particularly where the parties are not evenly balanced in social or economic strength. Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything els, his inability to produce relevant evidence before the court. Therefore, when the poor come before the court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the court for the purpose of securing enforcement of their fundamental rights. It must be remembered that the problems of the poor which are now coming before the court are qualitatively different from those which have hither to occupied the attention of the court and they need a different kind of lawyering skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never be able to enforce their fundamental rights and the result would be nothing but a mockery of the Constitution. We have therefore to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, devise new methods and adopt new strategies for the purpose of making fundamental rights meaningful for the large masses of people. And this is clearly permissible on the language of clause (2) of Article 32 because the Constitution makers while enacting that clause have deliberately and advisedly not used any words restricting the power of the court to adopt any procedure which it considers appropriate in the circumstances of a given case for enforcing a fundamental right. It is true that the adoption of this non-traditional approach is not likely to find easy acceptance from the generality of lawyers because their minds are conditioned by constant association with the existing system of administration of justice which has become ingrained in them as a result of long years of familiarity and experience and become part of their mental make up and habit and they would therefore always have an unconscious predilection for the prevailing system of administration of justice. But if we want the fundamental rights to become a living reality and the Supreme Court to become a real sentinel on the quivive, we must free ourselves from the shackles of outdated and outmoded assumptions and bring to bear on the subject fresh outlook and original unconventional thinking.
We accordingly allow this writ petition and issue the above directions to the Central Government and the State of Haryana and the various authorities mentioned in the preceding paragraphs of this judgment so that these poor unfortunate workmen who lead a miserable existence in small hovels, exposed to the vagaries of weather, drinking foul water, breathing heavily dust-laden polluted air and breaking and blasting stone all their life, may one day be able to realise that freedom is not only the monopoly of a few but belongs to them all and that they are also equally entitled along with others to participate in the fruits of freedom and development. These directions may be summarized as follows (1) The Government of Haryana will, without any delay and at any rate within six weeks from today, constitute Vigilance Committee in each sub- division of a district in compliance with the requirements of section 13 of the Bonded Labour System (Abolition) Act 1976 keeping in view the guidelines given by us in this judgment.
(2) The Government of Haryana will instruct the district magistrates to take up the work of identification of bonded labour as one of their top priority tasks and to map out areas of concentration of bonded labour which are mostly to be found in stone quarries and brick kilns and assign task forces for identification and release of bonded labour and periodically hold labour camps in these areas with a view to educating the labourers inter alia with the assistance of the National Labour Institute. (3) The State Government as also the Vigilance Committees and the district magistrates will take the assistance of non-political social action groups and voluntary agencies for the purpose of ensuring implementation of the provisions of the Bonded Labour System (Abolition) Act, 1976. (4) The Government of Haryana will draw up within a period of three months from today a scheme or programme for rehabilitation of the freed bonded labourers in the light of the guidelines set out by the Secretary to the Government of India, Ministry of Labour in his letter dated 2nd September 1982 and implement such scheme or programme to the extent found necessary.
(5) The Central Government and the Government of Haryana will take all necessary steps for the purpose of ensuring that minimum wages are paid to the workmen employed in the stone quarries and stone crushers in accordance with the principles laid down in this judgment and this direction shall be carried out within the shortest possible time so that within six weeks from today, the workmen start actually receiving in their hands a wage not less than the minimum wage.
(6) If payment of wages is made on truck basis, the Central Government will direct the appropriate officer of the Central Enforcement Machinery or any other appropriate authority or officer to determine the measurement of each truck as to how many cubic ft. of stone it can contain and print or inscribe such measurement on the truck so that appropriate and adequate wage is received by the workmen for the work done by them and they are not cheated out of their legitimate wage.
(7) The Central Government will direct the inspecting officers of the Central Enforcement Machinery or any other appropriate inspecting officers to carry out surprise checks at least once in a week for the purpose of ensuring that the trucks are not loaded beyond their true measurement capacity and if it is found that the trucks are loaded in excess of the true measurement capacity, the inspecting officers carrying out such checks will immediately bring this fact to the notice of the appropriate authorities and necessary action shall be initiated against the defaulting mine owners and/or thekedars or jamadars.
(8) The Central Government and the Government of Haryana will ensure that payment of wages is made directly to the workmen by the mine lessees and stone crusher owners or at any rate in the presence of a representative of the mine lesseses or stone crusher owners and the inspecting officers of the Central Government as also of the Government of Haryana shall carry out periodic checks in order to ensure that the payment of the stipulated wage is made to the workmen.
(9) The Central Board of Workers Education will organise periodic camps near the sites of stone quarries and stone crushers in Faridabad district for the purpose of educating the workmen in the rights and benefits conferred upon them by social welfare and labour laws and the progress made shall be reported to this Court by the Central Board of Workers Education at least once in three months.
(10) The Central Government and the Government of Haryana will immediately take steps for the purpose of ensuring that the stone crusher owners do not continue to foul the air and they adopt either of two devices, namely,, keeping a drum of water above the stone crushing machine with arrangement for continuous spraying of water upon it or installation of dust sucking machine and a compliance report in regard to this direction shall be made to this Court on or before 28th February, 1984.
(11) The Central Government and the Government of Haryana will immediately ensure that the mine lessees and stone crusher owners start supplying pure drinking water to the workmen on a scale of at least 2 litres for every work man by keeping suitable vessels in a shaded place at conveniently accessible points and such vessels shall be kept in clean and hygienic condition and shall be emptied, cleaned and refilled every day and the appropriate authorities of the Central Government and the Government of Haryana will supervise strictly the enforcement of this direction and initiate necessary action if there is any default.
(12) The Central Government and the Government of Haryana will ensure that minimum wage is paid to the women and/or children who look after the vessels in which pure drinking water is kept for the workmen.
(13) The Central Government and the Government of Haryana will immediately direct the mine lessees and stone crusher owners to start obtaining drinking water from any unpolluted source or sources of supply and to transport it by tankers to the work site with sufficient frequency so as to be able to keep the vessels filled up for supply of clean drinking water to the workmen and the Chief Administrator, Faridabad Complex will set up the points from where the mine lessees and stone crusher owners can, if necessary, obtain supply of potable water for being carried by tankers.
(14) The Central Government and the State Government will ensure that conservancy facilities in the shape of latrines and urinals in accordance with the provisions contained in section 20 of the Mines Act, 1950 and Rules 33 to 36 of the Mines Rules 1955 are provided at the latest by 15th February 1984.
(15) The Central Government and the State Government will take steps to immediately ensure that appropriate and adequate medical and first aid facilities as required by section 21 of the Mines Act 1952 and Rules 40 to 45A of the Mines Rules 1955 are provided to the workmen not later than 31st January 1984.
(16) The Central Government and the Government of Haryana will ensure that every workmen who is required to carry out blasting with explosives is not only trained under the Mines Vocational Training Rules 1966 but also holds first aid qualification and carries a first aid outfit while on duty as required by Rule 45 of the Mines Rules 1955.
(17) The Central Government and the State Government will immediately take steps to ensure that proper and adequate medical treatment is provided by the mine lessees and owners of stone crushers to the workmen employed by them as also to the members of their families free of cost and such medical assistance shall be made available to them without any cost of transportation or otherwise and the doctor's fees as also the cost of medicines prescribed by the doctors including hospitalisation charges, if any, shall also be reimbursed to them.
(18) The Central Government and the State Government will ensure that the provisions of the Maternity Benefit Act 1961, the Maternity Benefit (Mines and Circus) Rules 1963 and the Mines Creche Rules 1966 where applicable in any particular stone quarry or stone crusher are given effect to by the mine lessees and stone crusher owners.
(19) As soon as any workman employed in a stone quarry or stone crusher receives injury or contracts disease in the course of his employment, the concerned mine lessee or stone crusher owner shall immediately report this fact to the Chief Inspector or Inspecting Officers of the Central Government and/or the State Government and such Inspecting Officers shall immediately provide legal assistance. to the workman with a view to enabling him to file a claim for compensation before the appropriate court or authority and they shall also ensure that such claim is pursued vigorously and the amount of compensation awarded to the workman is secured to him.
(20) The Inspecting Officers of the Central Government as also of the State Government will visit each stone quarry or stone crusher at least once in a fortnight and ascertain whether there is any workman who is injured or who is suffering from any disease or illness, and if so, they will immediately take the necessary steps for the purpose of providing medical and legal assistance.
(21) If the Central Government and the Government of Haryana fail to ensure performance of any of the obligations set out in clauses 11, 13, 14 and 15 by the mine lessees and stone crusher owners within the period specified in those respective clauses, such obligation or obligations to the extent to which they are not performed shall be carried out by the Central Government and the Government of Haryana.
We also appoint Shri Laxmi Dhar Misra, Joint Secretary in the Ministry of Labour, Government of India as a Commissioner for the purpose of carrying out the following assignment.
(a) He will visit the stone quarries and stone crushers in Faridabad district and ascertain by enquiring from the labourers in each stone quarry or stone crusher in the manner set out by us whether any of them are being forced to provide labour and are bonded labourers and he will prepare in respect of each stone quarry or stone crusher a statement showing the names and particulars of those who, according to the inquiry made by him, are bonded labourers and he will also ascertain from them whether they want to continue to work in the stone quarry or stone crusher or they want to go away and if he finds that they want to go away, he will furnish particulars in regard to them to the District Magistrate, Faridabad and the District Magistrate will, on receipt of the particulars from Shri Laxmi Dhar Misra, make necessary arrangements for releasing them and provide for their transporation back to their homes and for this purpose the State Government will make the requisite funds available to the District Magistrate.
(b) He will also enquire from the mine lessees and owners of stone crushers as also from the thekedars and jamadars whether there are any advances made by them to the labourers working in the stone quarries or stone crushers and if so, whether there is any documentary evidence in support of the same and he will also ascertain what, according to the mine lessees and owners of stone crushers or the Jamadar or Thekedar, are the amounts of loans still remaining outstanding against such labourers.
(c) He will also ascertain by carrying out sample check whether the workmen employed in any particular stone quarry or stone crusher are actually in receipt of wage not less than the minimum wage and whether the directions given in this order in regard to computation and payment of minimum wage are being implemented by the authorities.
(d) He will conduct an inquiry in each of the stone quarries and stone crushers in Faridabad District for the purpose of ascertaining whether there are any contract labourers or inter-State migrant workmen in any of these stone. quarries or stone crushers and if he finds as a result of his inquiry that the Contract Labour Act and/or the Inter State Migrant Workmen Act is applicable, he will make a report to that effect to the Court.
(e) He will ascertain whether the directions given by us in this judgment regarding effective arrangement for supply of pure drinking water have been carried out by the mine lessees and stone crusher owners and pure drinking water has been made available to the workmen in accordance with those directions.
(f) He will also ascertain whether the mine lessees and owners of stone crushers in each of the stone quarries and stone crushers visited by him have complied with the directions given by us in this judgment regarding provision of conservancy facilities.
(g) He will also ascertain whether the directions given by us in this judgment in regard to provision of first aid facilities and proper and adequate medical treatment including hospitalisation to the workmen and the members of their families are being carried out by the mine lessees and stone crusher owners and the necessary first aid facilities and proper and adequate medical services including hospitalisation are provided to the workmen and the members of their families.
(h) He will also enquire whether the various other directions given by us in this judgment have been and are being carried out by the mine lessees and stone crusher owners.
As regards the form of the proceeding and its character, Article 32 speaks generally of a "appropriate proceedings". It should be a proceeding which can appropriately lead to an adjudication of the claim made for the enforcement of a fundamental right and can result in the grant of effective relief. Article 32 speaks of the Court's power "to issue directions or orders or writs", and the specific reference to "writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari" is by way of illustration only. They do not exhaus the content of the Court's power under Article 32.
Entering not into a more controversial area, it is appropriate to consider the nature of the procedure which the court may adopt under Article 32 of the Constitution. So far as the traditional private law is concerned, the procedure follows the accepted pattern and traditional forms associated with it. There can be little dispute there. Does public interest litigation call for somewhat different considerations ? Before dealing with this aspect, however, it is necessary to touch on two fundamental matters.
First, as to the petition, A practice has grown in the public of invoking the jurisdiction of this Court by a simple letter complaining of a legal injury to the author or to some other person or group of persons, and the Court has treated such letter as a petition under Article 32 and entertained the proceeding without anything more. It is only comparatively recently that the Court has begun to call for the filing of a regular petition on the letter. I see grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be attributed to the communication. There is good reason for the insistence on a document being set out in a form, or accompanied by evidence; indicating that the allegations made in it are made with a sense of responsibility by a person who has taken due care and caution to verify those allegations before making them. A plaint instituting a suit is required by the Code of Civil Procedure to conclude with a clause verifying the pleadings contained in it. A petition or application filed in court is required to be supported on affidavit. These safeguards are necessary because the document, a plaint or petition or application, commences a course of litigation involving the expenditure of public time and public money, besides in appropriate cases involving the issue of summons or notice to the defendant or respondent to appear and contest the proceeding. Men are busy conducting the affairs of their daily lives, and no one occupied with the responsibilities and pressures of present day existence welcomes being summoned to a law court and involved in a litigation. A document making allegations without any proof whatever of responsibility can conceivably constitute an abuse of the process of law. There is good reason, I think, for maintaining the rule that, except in special circumstances, the document petitioning the court for relief should be supported by satisfactory verification. This requirement is all the greater where petitions are received by the Court through the post. It is never beyond the bound of possibility that an unverified communication received through the post by the court may in fact have been employed mala fide, as an instrument of coercion or blackmail or other oblique motive against a person named therein who holds a position of honour and respect in society.
The Court must be ever vigilant against the abuse of its process It cannot do that better in this matter than insisting at the earliest stage, and before issuing notice to the respondent, that an appropriate verification of the allegations be supplied. The requirement is imperative in private law litigation. Having regard to its nature and purpose, it is equally attract to public interest litigation. While this Court has readily acted upon letters and telegrams in the past, there is need to insist now on an appropriate verification of the petition or other communication before acting on it. As I have observed earlier, there may be exceptional circumstances which may justify a waiver of the rule. For example, when the habeas corpus jurisdiction of the Court is invoked. For in all cases of illegal detention there is no doubt that the Court must act with speed and readiness. Or when the authorship of the communication is so impeccable and unquestionable that the authority of its contents may reasonably be accepted prima facie until rebutted. It will always be a matter for the Court to decide, on what petition will it require verification and when will it waive the rule.
Besides this, there is another matter which, although on the surface appears to be of merely technical significance, merits more than passing attention. I think the time has come to state clearly that all communications and petitions invoking the jurisdiction of the Court must be addressed to the entire Court, that is to say, the Chief Justice and his companion Judges. No such communication of petition can properly be addressed to a particular Judge. When the jurisdiction of the Court is invoked, it is the jurisdiction of the entire court. Which Judge or Judges will hear the case is exclusively a matter concerning the internal regulation of the business of the Court, interference with which by a litigant or member of the public constitutes the grossest impropriety. It is well established that when a division of the Court hears and decides cases it is in law regarded as a hearing and a decision by the Court itself. The judgment pronounced and the decree or order made are acts of the Court, and accordingly they are respected, obeyed and enforced throughout the land. It is only right and proper that this should be known clearly to the lay public. Communications and petitions addressed to a particular Judge are improper and violate the institutional personality of the Court. They also embarrass the judge to whom they are personally addressed. The fundamental conception of the Court must be respected, that it is a single indivisible institution, of united purpose and existing solely for the high constitutional functions for which it has been created. The conception of the Court as a loose aggregate of individual Judges, to one or more of whom judicial access may be particularly had, undermines its very existence and endangers its proper and effective functioning.
I shall now turn to the character and incidents of the procedure open to the Court in public interest litigation and the nature of the power exercised by it during the proceeding. In public interest litigation, the role held by the Court is more assertive than in traditional actions. During the regime of the Warran Court in the United States, it proceeded to the point where affirmative programmes were envisaged, and the relationship between right and remedy was freed from the rigid intimacy which constitutes a fundamental feature of private law litigation. While remedial procedure was fashioned according to the demands of the case and varied from stage to stage, in the shaping of relief the court treated with the future and devised a code of regulatory action. Viewed in that context, the role of the Court is creative rather than passive and it assumes a more positive attitude in determining facts.
Not infrequently public interest litigation affects the rights of persons not before the court, and in shaping the relief the court must invariably take into account its impact on those interests. Moreover, when its jurisdiction is invoked on behalf of a group, it is as well to remember that differences may exist in content and emphasis between the claims of different sections of the group. For all these reasons the court must exercise the greatest caution and adopt procedures ensuring sufficient notice to all interests likely to be affected. Moreover, the nature of the litigation sometimes involves the continued intervention of the court over a period of time, and the organising of the litigation to a satisfactory conclusion calls for judicial statesmanship, a close understanding of constitutional and legal values in the context of contemporary social forces, and a judicious mix of restraint and activism determined by the dictates of existing realities. Importantly, at the same time, the Court must never forget that its jurisdiction extends no farther than the legitimate limits of its constitutional powers, and avoid trespassing into political territory which under the Constitution has been appropriated to other organs of the State. This last aspect of the matter calls for more detailed consideration, which will be attempted later.
The procedures adopted by the Court in cases of public interest litigation must of course be procedures designed and shaped by the Court with a view to resolving the problem presented before it and determining the nature and extent of relief accessible in the circumstances. On the considerations to which I have adverted earlier, the Court enjoys a degree of flexibility unknown to the trial of traditional private law litigation. But I think it necessary to emphasis that whatever the procedure adopted by the court it must be procedure known to judicial tenets and characteristic of a judicial proceeding. There are methods and avenues of procuring material available to executive and legislative agencies, and often employed by them for the efficient and effective discharge of the tasks before them. Not all those methods and avenues are available to the Court. The Court must ever remind itself that one of the indicia identifying it as a Court is the nature and character of the procedure adopted by it in determining a controversy. It is in that sense limited in the evolution of procedures pursued by it in the process of an adjudication and in the grant and execution of the relief. Legal jurisprudence has in its historical development identified certain fundamental principles which form the essential constituents of judicial procedure. They are employed in every judicial proceeding, and constitute the basic infrastructure along whose channels flows the power of the Court in the process of adjudication What should be the conceivable framework of procedure in public interest litigation ? This question does not admit of a clear cut answer. As I have observed earlier, it is not possible to envisage a defined pattern of procedure applicable to all cases. Of necessity the pattern which the Court adopts will vary with the circumstances of each case. But it seems to me that one principle is clear. If there is a statute prescribing a judicial procedure governing the particular case the Court must follow such procedure. It is not open to the Court to bypass the statute and evolve a different procedure at variance with it. Where, however, the procedure prescribed by statute is incomplete or insufficient, it will be open to the Court to supplement it by evolving its own rules, Nonetheless, the supplementary procedure must conform at all stages to the principles of natural justice. There can be no deviation from the principles of natural justice and other well accepted procedural norms characteristic of a judicial proceeding. They constitute an entire code of general principles of procedure, tried and proven and hallowed by the sanctity of common and consistent acceptance during long years of the historical development of the law. The general principles of law, to which reference is made here, command the confidence, not merely of the Judge and the lawyer and the parties to the litigation, but supply that basic credibility to the judicial proceeding which strengthens public faith in the Rule of Law. They are rules rooted in reason and fairplay, and their governance guarantees a just disposition of the case. The court should be wary of suggestions favouring novel procedures in cases where accepted procedural rules will suffice.
Turning now to the nature and extent of the relief which can be contemplated in public interest litigation, we enter into an area at once delicate and sensitive and fraught with grave implications. Article 32 confers the widest amplitude of power on this Court in the matter of granting relief. It has power to issue "directions or orders or writs", and there is no specific indication, no express language, limiting or circumscribing that power. Yet, the power is limited by its very nature, that it is judicial power. It is power which pertains to the judicial organ of the State, identified by the very nature of the judicial institution. There are certain fundamental constitutional concepts which, although elementary, need to be recalled at times. The Constitution envisages a broad division of the power of the State between the legislature, the executive and the judiciary. Although the division is not precisely demarcated, there is general acknowledgment of its limits. The limits can be gathered from the written text of the Constitution, from conventions and constitutional practice, and from an entire array of judicial decisions. The constitutional lawyer concedes a certain measure of overlapping in functional action among the three organs of the State. But there is no warrant for assuming a geometrical congruence. It is common place that while the legislature enacts the law, the executive implements it and the court interprets it and, in doing so, adjudicates on the validity of executive action and, under our Constitution, even judges the validity of the legislation itself. And yet it is well recognised that in a certain sphere the legislature is possessed of judicial power, the executive possesses a measure of both legislative an judicial functions, and the court, in its duty of interpreting the law, accomplishes in its perfected action a marginal degree of legislative exercise. Nonetheless, a fine and delicate balance is envisaged under our Constitution between these primary institutions of the State. In similar Constitutions elsewhere the courts have been anxious to maintain and preserve that balance. An example is provided by Marbury v. Madisan(1) I do not mean to say that the Court should hesitate or falter or withdraw from the exercise of its jurisdiction. On the contrary, it must plainly do its duty under the Constitution. But I do say that in every case the Court should determine the true limits of its jurisdiction and, having done so, it should take care to remain within the restraints of its jurisdiction.
This aspect of Court action assumes especial significance in public interest litigation. It bears upon the legitimacy of the judicial institution, and that legitimacy is affected as much by the solution presented by the Court in resolving a controversy as by the manner in which the solution is reached. In an area of judicial functioning where judicial activism finds room for play, where constitutional adjudication can become an instrument of social policy forged by the personal political philosophy of the judge, this is an important consideration to keep in mind.
Where the Court embarks upon affirmative action in the attempt to remedy a constitutional imbalance within the social order, few critics will find fault with it so long as it confines itself to the scope of its legitimate authority. But there is always the possibility, in public interest litigation, of succumbing to the temptation of crossing into territory which properly pertains to the Legislature or to the Executive Government. For in most cases the jurisdiction of the Court is invoked when a default occurs in executive administration, and sometimes where a void in community life remains unfilled by legislative action. The resulting public grievance finds expression through social action groups, which consider the Court an appropriate forum for removing the deficiencies. Indeed, the citizen seems to find it more convenient to apply to the Court for the vindication of constitutional rights than appeal to the executive or legislative organs of the State.
In the process of correcting executive error or removing legislative omission the Court can so easily find itself involved in policy making of a quality and to a degree characteristic of political authority and indeed run the risk of being mistaken for one. An excessively political role identifiable with political governance betrays the Court into functions alien to its fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three basic institutions. The Judge, conceived in the true classical mould, is an impartial arbiter, beyond and above political bias and prejudice, functioning silently in accordance with the Constitution and his judicial conscience. Thus does he maintain the legitimacy of the institution he serves and honour the trust which his office has reposed in him.
The affirmative schemes framed in public interest litigation by. the Court sometimes require detailed administration under constant judicial supervision over protracted periods. The lives of large sections of people, some of whom have had no voice in the decision, are shaped and ordered by mandatory Court action extending into the future. In that context, it is as well to remember that public approval and public consent assume material importance in its successful implementation. In contrast with policy making by legislation, where a large body of legislators debate on a proposed legislative enactment, no such visual impact can be perceived when judicial decrees are forged and fashioned by a few judicial personages in the confines of a Court. The mystique of the robe, at the stage of decision-making, is associated traditionally with cloistered secrecy and confidentiality and the end-result commonly issues as a final definitive act of the Court. It is a serious question whether in every case the same awesome respect and reverence will endure during different stages of affirmative action seeking to regulate the lives of large numbers of people, some of whom never participated in the judicial process.
There is good reason to suppose that treating with public interest litigation requires more than legal scholarship and a knowledge of textbook law. It is of the utmost importance in such cases that when formulating a scheme of action, the Court must have due regard to the particular circumstances of the case, to surrounding realities including the potential for successful implementation, and the likelihood and degree of response from the agencies on whom the implementation will depend. In most cases of public interest litigation, there will be neither precedent nor settled practice to add weight and force to the vitality of the Court's action. The example of similar cases in other countries can afford little support. The successful implementation of the orders of the Court will depend upon the particular social forces in the backdrop of local history, the prevailing economic pressures, the duration of the stages involved in the implementation, the momentum of success from stage to stage, and acceptance of the Court's action at all times by those involved in or affected by it.
An activist Court, spearheading the movement for the development and extension of the citizen's constitutional rights, for the protection of individual liberty and for the strengthening of the socioeconomic fabric in compliance with declared constitutional objectives, will need to move with a degree of judicial circumspection. In the centre of a social order changing with dynamic pace, the Court needs to balance the authority of the past with the urges of the future, As far back as 1939, Judge Learned Hand(1) observed that a Judge "must preserve his authority by cloaking himself in the majesty of an over-shadowing past; but he must discover some composition with the dominant needs of his times". In that task the Court must ever be. conscious of the constitutional truism that it possesses the sanction of neither the sword nor the purse and that its strength lies basically in public confidence and support, and that consequently the legitimacy of its acts and decisions must remain beyond all doubt. Therefore, whatever the case before it, whatever the context of facts and legal rights, whatever the social and economic pressures of the times, whatever the personal philosophy of the Judge, let it not be forgotten that the essential identity of the institution, that it is a Court, must remain preserved so that every action of the Court is informed by the fundamental norms of law, and by the principles embodied in the Constitution and other sources of law. If its contribution to the jurisprudential ethos of society is to advance our constitutional objectives, it must function in accord with only those principles which enter into the composition of judicial action and give to it its essential quality. In his perceptive Lectures entitled "The Warren Court: Constitutional Decision as an Instrument of Reform"(2). Professor Archicald Cox pointedly observes:
"Ability to rationalise a constitutional judgment in terms of principles referable to accepted sources of law is an essential, major element of constitutional adjudication. It is one of the ultimate sources of the power of the Court- including the power to gain acceptance for the occasional great leaps forward which lack such justification. Constitutional government must operate by consent of the governed. Court decrees draw no authority from the participation of the. people. Their power to command consent depends upon more than habit or even the deserved prestige of the justices. It comes, to an important degree, from the continuing force of the rule of law-from the belief that the major influence in judicial decisions is not fiat but principles which bind the judges as well as the litigants and which apply consistently among all men today, and also yesterday and tomorrow".
There is great merit in the Court proceeding to decide an issue on the basis of strict legal principle and avoiding carefully the influence of purely emotional appeal. For that alone gives the decision of the Court a direction which is certain, and unfaltering, and that particular permanence in legal jurisprudence which makes it a base for the next step forward in the further progress of the law. Indeed, both certainty of substance and certainty of direction are indispensable requirements in the development of the law, and invest it with the credibility which commands public confidence in its legitimacy.
This warning is of especial significance in these times, during a phase of judicial history when a few social action groups tend to show evidence of presuming that in every case the court must bend and mould its decision to popular notions of which way a case should be decided.
I have endeavoured by these observations to indicate some of the areas in which the Court should move with caution and circumspection when addressing itself to public interest litigation. As new areas open before the Court with modern developments in jurisprudence, in a world more sensitive to human rights as well as the impact of technological progress, the Court will become increasingly conscious of its expanding jurisdiction. That is inevitable. But its responsibilities are correspondingly great, and perhaps never greater than now. And we must remember that there is no higher Court to correct our errors, and that we wear the mantle of infallibility only because our decisions are final. That we sit at the apex of the judicial administration and our word, by constitutional mandate, is the law of the land can induce an unusual sense of power. It is a feeling we must guard against by constantly reminding ourselves that every decision must be guided by reason and by judicial principles.
My brothers have dealt with the preliminary objections raised by the respondents to the maintainability of this proceeding. On the considerations to which I have adverted earlier I have no hesitation in agreeing with them that the preliminary objections must be rejected. I have no doubt in my mind that persons in this country obliged to serve as bonded labour are entitled to invoke Article 23 of the Constitution. The provisions embodied in that clause form a vital constituent of the Fundamental Rights set forth in Part III of the Constitution, and their violation attracts properly the scope of Article 32 of the Constitution. I also find difficulty in upholding the objection by the respondents to the admissibility and relevance of the material consisting of the report of the two advocates and of Dr. Patwardhan appointed as Commissioners. It is true that the reports of the said Commissioners have not been tested by cross-examination, but then the record does not show whether any attempt was made by the respondents to call them for cross-examination. The further question whether the appointment of the Commissioners falls within the terms of order XLVI of the Supreme Court Rules 1966 is of technical significance only, because there was inherent power in the Court, in the particular circumstances of this case, to take that action. I have already set forth earlier my views in respect of the nature and forms of procedure open to the Court in public interest litigation and I need not elaborate them here. I may add, however, that the Court would do well to issue notice to the respondents, before appointing any Commissioner, in those cases where there is little apprehension of the disappearance of evidence.
On the merits of the case I find myself in agreement with my brother Bhagwati, both in regard to the operation of the various statutes as well as the directions proposed by him. The case is one of considerable importance to a section of our people, who pressed by the twin misfortunes of poverty and illiteracy, are compelled to a condition of life which long since should have passed into history. The continued existence of such pockets of oppression and misery do no justice to the promises and assurances extended by our Constitution to its citizens.
AMARENDRA NATH SEN, J. The relevant facts have been fully set out in the judgment of my learned brother Bhagwati, J. My learned brother has also recorded in his judgment the various contentions which were urged before us in this writ petition.
A preliminary objection was raised by Shri K. L. Bhagat. Additional Solicitor General of India and also by Shri Phadke, learned counsel appearing on behalf of the respondents, as to the maintainability of the present petition. The objection to the maintainability of the present petition is taken mainly on the following three grounds:-
1 Art. 32 of the Constitution is not attracted to the instant case as no fundamental right of the petitioners or of the workmen referred to in the petition are infringed.
2 A letter addressed by a party to this Court cannot be treated as a writ petition and in the absence of any verified petition this Court cannot be moved to exercise its writ jurisdiction.
3 In a proceeding under Art. 32 of the Constitution this Court is not empowered to appoint any commission or an investigating body to enquire into the allegations made and make a report to this Court on the basis of the enquiry to enable this Court to exercise its power and jurisdiction under Art. 32 of the Constitution.
I propose to consider the objections in the order noted above. I shall first deal with the first objection, namely, that Art. 32 of the Constitution is not attracted as there is no violation of any fundamental right of the petitioner or of the workmen referred to in the petition.
The substance of the grievance of the petitioners in this petition is that the workmen referred to in the communication addressed to this Court are bonded labourers. In 1976, the Parliament enacted the Bonded Labour System (Abolition) Act, 1976 and by virtue of the provisions of the said Act, the bonded labour system has been declared to be illegal in this country. Any person who is wrongfully and illegally employed as a labourer in violation of the provisions of the Act, is in essence deprived of his liberty. A bonded labourer truly becomes a slave and the freedom of a bonded labourer in the matter of his employment and movement is more or less completely taken away and forced labour is thrust upon him. When any bonded labourer approaches this Court, the real grievance that he makes is that he should be freed from this bondage and he prays for being set at liberty and liberty is no doubt a fundamental right guaranteed to every person under the Constitution. There cannot be any manner of doubt that any person who is wrongfully and illegally detained and is deprived of his liberty can approach this Court under Art. 32 of the Constitution for his freedom from wrongful and illegal detention, and for being set at liberty. In my opinion, whenever any person is wrongfully and illegally deprived of his liberty, it is open to anybody who is interested in the person to move this Court under Art. 32 of the Constitution for his release. It may not very often be possible for the person who is deprived of his liberty to approach this Court, as by virtue of such illegal and wrongful detention, he may not be free and in a position to move this Court. The Petitioner in the instant case claims to be an association interested in the welfare of society and particularly of the weaker section. The Petitioner further states that the petitioner seeks to promote the welfare of the labourers and for promoting the welfare of labour, the petitioner seeks to move this Court for releasing the bonded labourers from their bondage and for restoring to them their freedom and other legitimate rights. The bonded labourers working in the far away places are generally poor and belong to the very weak section of the people. They are also not very literate and they may not be conscious of their own rights. Further, as they are kept in bondage their freedom is also restricted and they may not be in a position to approach this Court. Though no fundamental right of the petitioner may be said to be infringed, yet the petitioner who complains of the violation of the fundamental right of the workmen who have been wrongfully and illegally denied their freedom and deprived of their constitutional right must be held to be entitled to approach this Court on behalf of the bonded labourers for removing them from illegal bondage and deprivation of liberty. The locus standi of the petitioner to move this Court appear to be conclusively established by the decision of this Court in the case of S.P. Gupta v. Union of India & Anr.(1) Forced labour is constitutionally forbidden by Art. 23 of the Constitution. As in the present case the violation of the fundamental right of liberty of the workmen who are said to be kept in wrongful and illegal detention, employed in forced labour, is alleged, Art. 32 of the Constitution to my mind, is clearly attracted. The first ground raised on behalf of the respondents cannot, therefore, be sustained.
Before I proceed to deal with the second ground urged on behalf of the respondents, it will be convenient to set out the provisions of Art. 32 of the Constitution. Art. 32 read as follows:-
"(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrants and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution."
Art. 32(1) confers the right to move this Court by appropriate proceedings for enforcement of the fundamental rights guaranteed under the Constitution. Art. 32(2) makes provision for the powers of this Court in the matter of granting relief in any proceeding in this Court for enforcement of the fundamental rights guaranteed by the Constitution. Art. 32(3) and 32(4) which I have also set out for the purpose of complete understanding of the provisions of Art. 32 for proper appreciation of its scope and effect, do not have any material bearing on the question involved in the present proceeding.
The second ground which raises the question whether the letter addressed by a party to this Court can be treated as a writ petition and in the absence of any verified petition this court can be moved to exercise its writ jurisdiction, is essentially an objection to the procedure to be adopted by this Court in the matter of entertaining a proceeding under Art. 32 for enforcement of fundamental rights of the parties. Art. 32(1) of the Constitution which has been earlier set out guarantees the right to move this Court by an appropriate proceeding for the enforcement of the fundamental rights. Art. 32(2) confers wide powers on this Court in the matter of granting relief against any violation of the fundamental rights. Art. 32 or for that matter any other article does not lay down any procedure which has to be followed to move this Court for relief against the violation of any fundamental right. Art. 32(1) only lays down that the right to move this Court by appropriate proceedings for enforcement of fundamental rights is guaranteed. The Constitution very appropriately leaves the question as to what will constitute an appropriate proceeding for the purpose of enforcement of fundamental rights to be determined by the Court. This Court, when sought to be moved under Art. 32 by any party for redressing his grievance against the violation of fundamental rights has to consider whether the procedure followed by the party is appropriate enough to entitle the court to proceed to act on the same. No doubt this Court has framed rules which are contained in part IV, Order XXXV of the Supreme Court Rules under the Caption "application for enforcement of fundamental rights ("Art. 32 of the Constitution"). Generally speaking, any party who seeks to move this Court under Act. 32 of the Constitution should conform to the rules prescribed. The rules lay down the procedure which is normally to be followed in the matter of any application under Art. 32 of the Constitution. These rules are rules relating to the procedure to be adopted and the rules are intended to serve as maids to the Deity of Justice. Procedural law which also forms a part of the law and has to be observed, is, however, subservient to substantive law and the laws of procedure are prescribed for promoting and furthering the ends of justice. There cannot be any doubt that this Court should usually follow the procedure laid down in O.XXXV of the Rules of this Court and should normally insist on a petition properly verified by an affidavit to be filed to enable the Court to take necessary action on the same. Though this Court should normally insist on the rules of procedure being followed, it cannot be said, taking into consideration the nature of right conferred under Art. 32 to move this Court by an appropriate proceeding and the very wide powers conferred on this Court for granting relief in the case of violation of fundamental rights that this Court will have no jurisdiction to entertain any proceeding which may not be in conformity with procedure prescribed by the Rules of this Court. The Rules undoubtedly lay down the procedure which is normally to be followed for making an application under Art. 32 of the Constitution. They, however, do not and cannot have the effect of limiting the jurisdiction of this Court of entertaining a proceeding under Art. 32 of the Constitution, if made, only in the manner prescribed by the rules. For effectively safeguarding the fundamental rights guaranteed by the Constitution, the Court in appropriate cases in the interests of justice will certainly be competent to treat a proceeding, though not in conformity with the procedure prescribed by the Rules of this Court, as an appropriate proceeding under Art. 32 of the Constitution and to entertain, the same. Fundamental rights guaranteed under the Constitution are indeed too sacred to be ignored or trifled with merely on the ground of technicality or any rule of procedure. It may further be noticed that the rules framed by this Court do not also lay down that this Court can be moved under Art. 32 of the Constitution only in accordance with the procedure prescribed by the Rules and not otherwise. A mere technicality in the matter of form or procedure which may not in any way affect the substance of any proceeding should not stand in the way of the exercise of the very wide jurisdiction and powers conferred on this Court under Art. 32 of the Constitution for enforcement of fundamental rights guaranteed under the Constitution. Taking into consideration the substance of the matter and the nature of allegations made, it will essentially be a matter for the Court to decide whether the procedure adopted can be considered to be an appropriate proceeding within the ambit of Art. 32 of the Constitution. The Court, if satisfied on the materials placed in the form of a letter or other communication addressed to this court, may take notice of the same in appropriate cases. Experience shows that in many cases it may not be possible for the party concerned to file a regular writ petition in conformity with procedure laid down in the Rules of this Court. It further appears that this Court for quite some years now has in many cases proceeded to act on the basis of the letters addressed to it. A long standing practice of the Court in the matter of procedure also acquires sanctity. It may also be pointed out that in various cases the Court has refused to take any notice of letters or other kind of communications addressed to Court and in many cases also the court on being moved by a letter has directed a formal writ petition to be filed before it has decided to proceed further in the matter. It is, however, eminently desirable, in my opinion, that normally the procedure prescribed in the rules of this Court should be followed while entertaining a petition under Art. 32 of the Constitution, though in exceptional cases and particularly in matter of general public interest, this Court may, taking into consideration the peculiar facts and circumstances of the case, proceed to exercise its jurisdiction under Art. 32 of the constitution for enforcement of fundamental rights treating the letter or the communication in any other form as an appropriate preceding under Art. 32 of the Constitution. It is, however, eminently desirable that any party who addresses a letter or any other communication to this Court seeking intervention of this Court on the basis of the said letter and communication should address this letter or communication to this Court and not to any individual Judge by name. Such communication should be addressed to the Chief Justice of the Court and his companion Justices. A private communication by a party to any Learned Judge over any matter is not proper and may create embarrassment for the Court and the Judge concerned.
In the present case, the unfortunate workers who are emploced as bonded labourers at as distant place, could not possibly in view of their bondage, move this Court, following the procedure laid down in the Rules of this Court. The Petitioner which claims to be a Social Welfare Organisation interested in restoring liberty and dignity to these unfortunate bonded labourers should be considered competent to move this Court by a letter or like communication addressed to this Court, to avoid trouble and expenses, as the petitioner is not moving this Court for any personal or private benefit.
I shall now consider the third and the last objection which relates to the powers of this Court to direct an enquiry into the allegations made and to call for a report in a proceeding under Art. 32 of the Constitution to enable this Court to exercise its power and jurisdiction under Art. 32 of the Constitution.
We have earlier noted that the fundamental rights are guaranteed by the Constitution and for the enforcement of the fundamental rights very wide powers have been conferred on this Court. Before this Court proceeds to exercise its owers under Art. 32 of the Constitution for enforcing the fundamental rights guaranteed, this Court has to be satisfied that there has been a violation of the fundamental rights. The fundamental rights may be alleged to have been violated under various circumstances. The facts and circumstances differ from case to case. Whenever, however, there is an allegation of violation of fundamental rights, it becomes the responsibility and also the sacred duty of this Court to protect such fundamental rights guaranteed under the Constitution provided that this Court is satisfied that a case for interference by this Court appears prima facie to have been made out. very often the violation of fundamental rights is not admitted or accepted. On a proper consideration of the materials the Court has to come to a conclusion whether there has been any violation of fundamental rights to enable the Court to grant appropriate reliefs in the matter. In various cases, because of the peculiar facts and circumstances of the case the party approaching this Court for enforcement of fundamental rights may not be in a position to furnish all relevant materials and necessary particulars. If, however, on a consideration of the materials placed, the Court is satisfied that a proper probe into the matter is necessary in the larger interest of administration of justice and for enforcement of fundamental rights guaranteed, the Court, in view of the obligations and duty cast upon it of preserving and protecting fundamental rights, may require better and further materials to enable the Court to take appropriate action; and there cannot be anything improper in the proper exercise of Court's jurisdiction under Art. 32 of the Constitution to try to secure the necessary materials through appropriate agency. The Commission that the Court may appoint or the investigation that the court may direct is essentially for the Court's satisfaction as to the correctness or otherwise of the allegation of violation of fundamental rights to enable the Court to decide the course to be adopted for doing proper justice to the parties in the matter of protection of their fundamental rights. We have to bear in mind that in this land of ours, there are persons without education, without means and without opportunities and they also are entitled to full protection of their rights or privileges which the Constitution affords. Living in chilled penury without necessary resources and very often not fully conscious of their rights guaranteed under the Constitution, a very large section of the people commonly termed as the weaker section live in this land. When this Court is approached on behalf of this class of people for enforcement of fundamental rights of which they have been deprived and which they are equally entitled to enjoy, it becomes the special responsibility of this Court to see that justice is not denied to them and the disadvantageous position in which they are placed, do not stand in the way of their getting justice from this Court. The power to appoint a commission or an investigating body for making enquiries in terms of directions given by the Court must be considered to be implied and inherent in the power that the Court has under Art. 32 for enforcement of the fundamental rights guaranteed under the Constitution. This is a power which is indeed incidental or ancillary to the power which the Court is called upon to exercise in a proceeding under Art. 32 of the Constitution. It is entirely in the discretion of the Court, depending on the facts and circumstances of any case, to consider whether any such power regarding investigation has to be exercised or not. The Commission that the Court appoints or the investigation that the Court directs while dealing with a proceeding under Art. 32 of the Constitution is not a commission or enquiry under the Code of Civil Procedure. Such power must necessarily be held to be implied within the very wide powers conferred on this Court under Art. 32 for enforcement of fundamental rights. I am, further of the opinion that for proper exercise of its powers under Art. 32 of the Constitution and for due discharge of the obligation and duty cast upon this Court in the matter of protection and enforcement of fundamental rights which the Constitution guarantees, it must be held that this Court has an inherent power to act in such a manner as will enable this Court to discharge its duties and obligations under Art. 32 of the Constitution properly and effectively in the larger interest of administration of justice, and for proper protection of constitutional safeguards. I am, therefore, of the opinion that this objection is devoid of any merit.
I may incidentally observe that as a result of such action on the part of the Court attention of the appropriate authorities concerned has in a number of cases been pointedly drawn to the existence of bonded labourers in various parts of the country and to their miserable plight and a large number of bonded labourers have been freed from their bondage. To my mind, the litigation of this type particularly in relation to bonded labourers is really not in nature in adversary litigation and it becomes the duty of the State and also of the appropriate authorities to offer its best co-operation to see that this evil practice which has been declared illegal is ended at the earliest. The existence of bonded labour in the country is an unfortunate fact. Whenever there is any allegation of the existence of bonded labour in any particular State, the State instead of seeking to come out with a case of denial of such existence on the basis of a feeling that the existence of bonded labour in the State may cast a slur or stigma on its administrative machinery, should cause effective enquiries to be made into the matter and if the matter is pending in this Court, should co- operate with this Court to see that death-knell is sounded on this illegal system which constitutes a veritable social menace and stands in the way of healthy development of the nation.
For reasons aforesaid, I do not find any merit in the preliminary objections raised and I agree with my learned brother that the preliminary objections must be over-ruled.
On the merits of the case my learned brother Bhagwati, J. has in his judgment carefully and elaborately discussed all the aspects. Apart from the principal grievance made that the workmen in the instant case are bonded labourers, various grievances on behalf of the workmen have been voiced and denial to the workmen of various other just rights has been alleged. The grievance of denial of other just rights to the workmen and the reliefs claimed for giving the workmen the benefits to which they may be entitled under various legislations enacted for their welfare are more or less in the nature of consequential reliefs incidental to the main relief of freedom from bonded and forced labour to which the workmen are subjected. I must frankly confess that in the facts and circumstances of this case I have some doubts as to the applicability of the provisions of Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. The views expressed by my learned brother Bhagwati, J. in his judgment, to my mind, do not amount to any adjudication on the question of applicability of the Inter State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979. The observations made by my learned brother Bhagwati, J. and the directions given by him on the various aspects with regard to the merits of the case after carefully considering the provisions of all the relevant labour legislations enacted tor the benefit of labourers and for improvement and betterment of their lot, are for furthering the interests of the workmen and for proper protection and preservation of their just rights and to enable the appropriate authorities to take necessary action in the matter. As I am in agreement with the views expressed by my learned Brother Bhagwati, J. I do not propose to deal with these aspects at any length and I content myself by expressing my agreement with the judgment of my learned brother Bhagwati, J. on these matters.
Supreme Court of India
Gaurav Jain vs Union Of India & Ors on 9 July, 1997
We are of the view that the suggestions require earnest examination to give force and content to them. The rescue and rehabilitation of the child prostitutes and children should be kept under the nodal Department, namely, Department of Women and Child Development under the Ministry of Welfare and Human Resource, Government of India. It would devise suitable schemes for proper and effective implementation. The institutional care, thus, would function as an effective rehabilitation of fallen women even if they have crossed the age prescribed under the JJ Act. They should not be left to themselves, but should be rehabilitated through self-employment schemes or such measures as are indicated hereinbefore. The juvenile homes should be used only for a short stay to relieve the child prostitutes and neglected juveniles from the trauma they would have suffered ; they need to be rehabilitated in the appropriate manner. The details are required to be worked out by meaningful procedure and programmes. In the light of the directions already given by this Court from time to the Central Government, State Governments and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes, child prostitutes and the neglected juveniles as indicated hereinabove ; they should take measures to provide them adequate safety, protection and rehabilitation in the juvenile homes manned by qualified trained social workers or homes run by NGOs with the aid and financial assistance given by Government of India or State Government concerned. A nodal Committee with the public spirited NGOs, in particular women organisations/woman members should be involved in the management. Adequate encouragement may be given to them ; the needed funds should be provided and timely payments disbursed so that the scheme would be implemented effectively and fruitfully.
The Minister of Welfare, Government of India will constitute a Committee consisting of the Secretary in charge of Department of Women the Child Development as the chairperson and three or four Secretaries from the concerned State Governments, to be nominated by the Minister of Welfare. They would make an in-depth study into these problems and evolve such suitable schemes as are appropriate and consistent with the directions given above. The Committee should be constituted within one month from the date of the receipt of this judgment. The Committee should finalise the report within three months thereafter. As soon as the report is submitted. the same may be communicated to all the State Governments and the concerned Ministries for their examination. Within two month from date of the communication, the Minister of Welfare, Government of India, in coordination with the Prime Minister Office should convene a meeting presided over by the Prime Minister, with Minister of Welfare, Home Minister, Human Resource Minister, the concerned Minister, Human Resource Minister, the concerned Ministers of the State Governments and their Secretaries as well to discuss the problem and take decision. The Committee should finalise the report with further suggestions or amendments, if suggested in the conference. Thereafter, the report should be finalised and then direction would be given to the State Governments for effective implementation of the schemes. The nodal Department would enforce and regularly be supervised by the Ministry of Welfare, Government of India. A permanent Committee of Secretaries should be constituted to review the progress of the implementation on annual basis, and to take such other steps as may be expedient in the effective implementation of the schemes. Periodical progress as to funding and enforcement of the scheme should be submitted to the Registry of this Court. If further directions would be needed, liberty is given to the parties to approach this Court. In that view of the matter, it is believed and hoped that the above law and directions would relieve the human problem by rehabilitation of the unfortunate fallen women cought in the trap of prostitution ; their children would be brought into the mainstream of the social order ; these directions would enable them to avail the equality of opportunity and of status, with dignity of person which are the arch of the Constitution.
Supreme Court of India
Vishal Jeet vs Union Of India And Ors on 2 May, 1990
Article 23 which relates to Fundamental Rights in Part of the Constitution and which has been put under the caption 'Right against exploitation' prohibits 'traffic in human beings and begat and other similar forms of labour' and provides that any contravention of Article 23(1) shall be an offence punishable in accordance with law. The expres- sion 'traffic in human beings' is evidently a very wide expression including the prohibition of traffic in women for immoral or other purposes. Article 35(a)(ii) of the Consti- tution reads that notwithstanding anything in this Constitu- tion, Parliament shall have, and the legislature of a State shall not have, power to make laws for prescribing punish- ment for those acts which are declared to be offences under this part. The power of legislation, under this article, is given to the Parliament exclusively, for, otherwise the laws relating to fundamental rights would not have been uniform throughout the country. The power is specifically denied to the state legislatures. In implementation of the principles underlying Article 23(1) the Suppression of Immoral Traffic in Women & Girls Act, 1956 (SITA for short) has been enacted under Article 35 with the object of inhibiting or abolishing the immoral traffic in women and girls.
In this connection, it is significant to refer Article 39 which relates to 'Directive Principles of State Policy' under Part IV of the Constitution. Article 39 particularises certain objectives. Clause (f) of Article 39 was substituted by Forty-Second Amendment Act, 1976. Among the objectives mentioned under Clauses (e) and (f) of Article 39, we will confine ourselves only to certain relevant objectives under those two clauses which are sufficient for the purpose of this case. One of the objectives under clause (e) of Article 39 is that the State should, in particular, direct its policy towards securing that the tender age of children are not abused. One of the objectives under clause (f) is that the State should, in particular, direct its policy towards securing that childhood and youth are protected against exploitation and against moral and material abandonment. These objectives reflect the great anxiety of the Constitution makers to protect and safeguard the interests and welfare of the children of our country. The Government of India has also, in pursuance of these constitutional provisions of clauses
(e) and (f) of Article 39, evolved a national policy for the welfare of the children.
It will be apposite to make reference to one of the principles, namely, principle No. (9) formulated by the Declaration of the Rights of the Child adopted by the Gener- al Assembly of the United Nations on November 20, 1959. The said principle reads thus:
'The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form."
Before the adoption of SITA, there were enactments in some of the states for suppression of immoral traffic, but they were not uniform nor were they found to be adequately effective. Some states did not have any law on the subject. With the growing danger in society to healthy and decent living with morality, the world public opinion congregated at New York in a convention for suppression of traffic in persons for exploitation for immoral purposes. Pursuant to the signing of that convention on May 9, 1950, our Parlia- ment has passed an Act called "Suppression of Immoral Traf- fic in Women and Girls Act, 1956 which is now changed as "The Immoral Traffic (Prevention) Act, 1956" to which cer- tain drastic amendments are introduced by the Amendment Acts of 46 of 1978 and 44 of 1986. This Act aims at suppressing the evils of prostitution in women and girls and achieving a public purpose viz. to rescue the fallen women and girls and to stamp out the evils of prostitution and also to provide an opportunity to these fallen victims so that they could become decent members of the society. Besides the above Act, :here are various provisions in the Indian Penal Code such as Sections 866-A (dealing with procuration of minor girl), 366-B (dealing with offence of importation of girl from foreign country), 372 (dealing with selling of minor for purposes of prostitution etc. ) and 373 (dealing with the offence of buying minor for purposes of prostitution etc.). The Juvenile Justice Act, 1986 which provides for the care, protection, treatment, development and rehabilitaton of neglected or deliquent juveniles contains a specific provision namely Section 13 which empowers a police officer or any other person or organisation authorised by the State Government in this behalf to take charge of any neglected juveniles and bring them before the Board constituted under this Act which Board under section 15 has to hold an enquiry and make such orders in relation to the neglected juveniles as it may deem fit.
Inspite of the above stringent and rehabilitative provi- sions of law under various Acts, it cannot be said that the desired result has been achieved. It cannot be gainsaid that a remarkable degree of ignorance or callousness or culpable indifference is manifested in uprooting this cancerous growth despite the fact that the day has arrived imperiously demanding an objective multi-dimensional study and a search- ing investigation into the matter relating to the causes and effects of this evil and requiting most rational measures to weed out the vices of illicit trafficking. This malady is not only a social but also a socioeconomic problem and, therefore, the measures to be taken in that regard should be more preventive rather than punitive.
In our view, it is neither practicable and possible nor desirable to make a roving enquiry through the CBI through- out the length and breadth of this country and no useful purpose will be served by issuing any such direction, as requested by the petitioner. Further, this malignity cannot be eradicated either by banishing, branding, scourging or inflicting severe punishment on these helpless and hapless victims most of whom are unwilling participants and involun- tary victims of compelled circumstances and who, finding no way to escape, are weeping or wailing throughout. This devastating malady can be suppressed and eradicated only if the law enforcing authorities in that regard take very severe and speedy legal action against all the erring persons such as pimps, brokers and brothel keepers. The Courts in such cases have to always take a serious view of this matter and inflict consign punishment on proof of such offences. Apart from legal action, both the Central and the State Government who have got an obligation to safeguard the interest and welfare of the children and girls of this country have to evaluate various measures and implement them in the right direction.
Bhagwati, J. (as he then was) in Lakshmi Kant Pandey v. Union of India, [1984] 2 SCC 244 while emphasizing the importance of children has expressed his view thus: "It is obvious that in a civilized society the importance of child welfare cannot be over-emphasized, because the welfare of the entire community, its growth and development, depend on the health and well-being of its children. Children are a 'supremely important national asset' and the future well- being of the nation depends on how its children grow and develop."
We, after bestowing our deep and anxious consideration on this matter feel that it would be appropriate if certain directions are given in this regard. Accordingly, we make the following directions:
1. All the State Governments and the Governments of Union Territories should direct their concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution without giving room for any complaint of remissness or culpable indifference.
2. The State Governments and the Governments of Union Terri- tories should set up a separate Advisory Committee within their respective zones consisting of the secretary of the Social Welfare Department or Board, the Secretary of the Law Department, sociologists, criminologists, members of the women's organisations, members of Indian Council of Child Welfare and Indian Council of Social Welfare as well the members of various voluntary social organisations and asso- ciations etc., the main objects of the Advisory Committee being to make suggestions of:
(a) the measures to be taken in eradicating the child pros- titution, and
(b) the social welfare programmes to be implemented for the care, protection, treatment, development and rehabilitation of the young fallen victims namely the children and girls rescued either from the brothel houses or from the vices of prostitution.
3. All the State Governments and the Governments of Union Territories should take steps in providing adequate and rehabilitative homes manned by well-qualified trained social workers, psychiatarists and doctors.
4. The Union Government should set up a committee of its own in the line, we have suggested under direction No.(2) the main object of which is to evolve welfare programmes to be implemented on the national level for the care, protection, rehabilitation etc. etc. of the young fallen victims namely the children and girls and to make suggestions of amendments to the existing laws or for enactment of any new law, if so warranted for the prevention of sexual exploitation of children.
5. The Central Government and the Governments of States and Union Territories should devise a machinery of its own for ensuring the proper implementation of the suggestions that would be made by the respective committees.
6. The Advisory Committee can also go deep into devadasi system and Jogin tradition and give their valuable advice and suggestions as to what best the Government could do in that regard.
7. The copies of the affidavits and the list containing the names of 9 girls are directed to be forwarded to the Commis- sioner of Police, Delhi for necessary action. We may add that we are not giving an exhaustive list of the members for the constitution of the committee. There- fore, it is open to the concerned Government to include any member or members in the committee as it deems necessary. We hope and trust that he directions given by us will go a long way towards eradicating the malady of child prostitu- tion, Tevadasi system and Jogin tradition and will also at the same time protect and safeguard the interests of the children by preventing of the sexual abuse and exploitation. So far as the remaining prayer regarding rehabilitation of the children of prostitutes is concerned, we understand that a similar issue is raised in a separate writ petition bearing W.P. No. 824/88 pending before this Court and this Court is seized of the matter and also has given an interim direction on 15.11.1989 for setting up a committee to go into the question from various angles of the problems taking into consideration the different laws relevant to the matter and to submit its report. (Vide Gaurav Jain v. Union of India and Others, AIR 1990 SC 292. Therefore, we are not expressing any opinion on this prayer regarding the rehabil- itation of the children of prostitutes.
Supreme Court of India
Lakshmi Kant Pandey vs Union Of India on 6 February, 1984
Situations may frequently arise where a child may be in the care of a child welfare institution or centre or social or child welfare agency which has not been recognised by the Government. Since an application for appointment as guardian can, according to the principles and norms laid down by us, be processed only by a recognised social or child welfare agency and none else, any unrecognised institution, centre or agency which has a child under its care would have to approach a recognised social or child welfare agency if it desires such child to be given in inter-country adoption, and in that event it must send without any undue delay the name and particulars of such child to the recognised social or child welfare agency through which such child is proposed to be given in inter-country adoption. Every recognised social or child welfare agency must maintain a register in which the names and particulars of all children proposed to be given in inter-country adoption through it must be entered and in regard to each such child, the recognised social or child welfare agency must prepare a child study report through a professional social worker giving all relevant information in regard to the child so as to help the foreigner to come to a decision whether or not to adopt the child and to understand the child, if he decides to adopt it as also to assist the court in coming to a decision whether it will be for the welfare of the child to be given in adoption to the foreigner wishing to adopt it. The child study report should contain as far as possible information in regard to the following matters:
"(1) Identifying information, supported where possible by documents.
(2) Information about original parents, including their health and details of the mother's pregnancy and birth.
(3) Physical, intellectual and emotional development.
(4) Health report prepared by a registered medical practitioner preferably by a paediatrician.
(5) Recent photograph.
(6) Present environment-category of care (Own home, foster home, institution etc.) relationships, routines and habits. (7) Social worker's assessment and reasons for suggesting inter-country adoption."
The government of India should, with the assistance of the Government of the States, prepare a list of recognised social or child welfare agencies with their names, addresses and other particulars and send such list to the appropriate department of the Government of each foreign country where Indian children are ordinarily taken in adoption so that the social or child welfare agencies licensed or recognised by the Government of such foreign country for intercountry adoptions, would know which social or child welfare agency in India they should approach for processing an application of its national for taking an Indian child in adoption. Such list shall also be sent by the Government of India to each High Court with a request to forward it to the district courts within its jurisdiction so that the High Courts and the district courts in the country would know which are the recognised social or child welfare agencies entitled to process an application for appointment of a foreigner as guardian. Of course, it would be desirable if a Central Adoption Resource Agency is set up by the Government of India with regional branches at a few centres which are active in inter-country adoptions. Such Central Adoption Resource Agency can act as a clearing house of information in regard to children available for inter-country adoption and all applications by foreigners for taking Indian children in adoption can then be forwarded by the social or child welfare agency in the foreign country to such Central Adoption Resource Agency and the latter can in its turn forward them to one or the other of the recognised social or child welfare agencies in the country. Every social or child welfare agency taking children under its care can then be required to send to such Central Adoption Resource Agency the names and particulars of children under its care who are available for adoption and the names and particulars of such children can be entered in a register to be maintained by such Central Adoption Resource Agency. But until such Central Adoption Resource Agency is set up, an application of a foreigner for taking an Indian child in adoption must be routed through a recognised social or child welfare agency. Now before any such application from a foreigner is considered, every effort must be made by the recognised social or child welfare agency to find placement for the child by adoption in an Indian family. Whenever any Indian family approaches a recognised social or child welfare agency for taking a child in adoption, all facilities must be provided by such social or child welfare agency to the Indian family to have a look at the children available with it for adopt on and if the Indian family wants to see the child study report in respect of any particular child, child study report must also be made available to the Indian family in order to enable the Indian family to decide whether they would take the child in adoption. It is only if no Indian family comes forward to take a child in adoption within a maximum period of two months that the child may be regarded as available for inter-country adoption, subject only to one exception, namely, that if the child is handicapped or is in bad state of health needing urgent medical attention, which is not possible for the social or child welfare agency looking after the child to provide, the recognised social or child welfare agency need not wait for a period of two months and it can and must take immediate steps for the purpose of giving such child in inter-country adoption. The recognised social or child welfare agency should, on receiving an application of a foreigner for adoption through a licensed or recognised social or child welfare agency in a foreign country, consider which child would be suitable for being given in adoption to the foreigner and would fit into the environment of his family and community and send the photograph and child study report of such child to the foreigner for the purpose of obtaining his approval to the adoption of such child. The practice of accepting a general approval of the foreigner to adopt any child should not be allowed, because it is possible that if the foreigner has not seen the photograph of the child and has not studied the child study report and a child is selected for him by the recognised social or child welfare agency in India on the basis of his general approval, he may on the arrival of the child in his country find that he does not like the child or that the child is not suitable in which event the interest of the child would be seriously prejudiced. The recognised social or child welfare agency must therefore insist upon approval of a specific known child and once that approval is obtained, the recognised social or child welfare agency should immediately without any undue delay proceed to make an application for appointment of the foreigner as guardian of the child. Such application would have to be made in the court within whose jurisdiction the child ordinarily resides and it must be accompanied by copies of the home study report, the child study report and other certificates and documents forwarded by the social or child welfare agency sponsoring the application of the foreigner for taking the child in adoption.
Before we proceed to consider what procedure should be followed by the court in dealing with an application for appointment of a foreigner as guardian of a child, we may deal with a point of doubt which was raised before us, namely, whether the social or child welfare agency which is looking after the child should be entitled to receive from the foreigner wishing to take the child in adoption any amount in respect of maintenance of the child or its medical expenses. We were told that there are instances where large amounts are demanded by so called social or child welfare agencies or individuals in consideration of giving a child in adoption and often this is done under the label of maintenance charges and medical expenses supposed to have been incurred for the child. This is a pernicious practice which is really nothing short of trafficking in children and it is absolutely necessary to put an end to it by introducing adequate safeguards. There can be no doubt that if an application of a foreigner for taking a child in adoption is required to be routed through a recognised social or child welfare agency and the necessary steps for the purpose of securing appointment of the foreigner as guardian of the child have also to be taken only through a recognised social or child welfare agency, the possibility of any so called social or child welfare agency or individual trafficking in children by demanding exorbitant amounts from prospective adoptive parents under the guise of maintenance charges and medical expenses or otherwise, would be almost eliminated. But, at the same time, it would not be fair to suggest that the social or child welfare agency which is looking after the child should not be entitled to receive any amount from the prospective adoptive parent, when maintenance and medical expenses in connection with the child are actually incurred by such social or child welfare agency. Many of the social or child welfare agencies running homes for children have little financial resources of their own and have to depend largely on voluntary donations and therefore if any maintenance or medical expenses are incurred by them on a child, there is no reason why they should not be entitled to receive reimbursement of such maintenance and medical expenses from the foreigner taking the child in adoption. We would therefore direct that the social or child welfare agency which is looking after the child selected by a prospective adoptive parent, may legitimately receive from such prospective adoptive parent maintenance expenses at a rate not exceeding Rs. 60 per day (this outer limit being subject to revision by the Ministry of Social Welfare, Government of India from time to time) from the date of selection of the child by him until the date the child leaves for going to its new home as also medical expenses including hospitalisation charges, if any, actually incurred by such social or child welfare agency for the child. But the claim for payment of such maintenance charges and medical expenses shall be submitted to the prospective adoptive parent through the recognised social or child welfare agency which has processed the application for guardianship and payment in respect of such claim shall not be received directly by the social or child welfare agency making the claim but shall be paid only through the recognised social or child welfare agency. This procedure will to a large extent eliminate trafficking in children for money or benefits in kind and we would therefore direct that this procedure shall be followed in the future. But while giving this direction, we may make it clear that what we have said should not be interpreted as in any way preventing a foreigner from making voluntary donation to any social or child welfare agency but no such donation from a prospective adoptive parent shall be received until after the child has reached the country of its prospective adoptive parent.
It is also necessary to point out that the recognised social or child welfare agency through which an application of a foreigner for taking a child in adoption is routed must, before offering a child in adoption, make sure that the child is free to be adopted. Where the parents have relinquished the child for adoption and there is a docu-
ment of surrender, the child must obviously be taken to be free for adoption. So also where a child is an orphan or destitute or abandoned child and it has not been possible by the concerned social or child welfare agency to trace its parents or where the child is committed by a juvenile court to an institution, centre or home for committed children and is declared to be a destitute by the juvenile court, it must be regarded as free for adoption. The recognised social or child welfare agency must place sufficient material before the court to satisfy it that the child is legally available for the adoption. It is also necessary that the recognised welfare agency must satisfy itself, firstly, that there is no impediment in the way of the child entering the country of the prospective adoptive parent; secondly, that the travel documents for the child can be obtained at the appropriate time and lastly, that the law of the country of the prospective adoptive parent permits legal adoption of the child and that no such legal adoption being concluded, the child would acquire the same legal status and rights of inheritance as a natural born child and would be granted citizenship in the country of adoption and it should file along with the application for guardianship, a certificate reciting such satisfaction.
We may also at this stage refer to one other question that was raised before us, namely, whether a child under the care of a social or child welfare agency or hospital or orphanage in one State can be brought to another State by a social or child welfare agency for the purpose of being given in adoption and an application for appointment of a guardian of such child can be made in the court of the latter State. This question was debated before us in view of the judgment given by Justice Lentin of the Bombay High Court of 22nd July, 1982 in Miscellaneous Petition No. 178 of 1982 and other allied petitions. We agree with Justice Lentin that the practice of social or child welfare agencies or individuals going to different States for the purpose of collecting children for being given in inter-country adoption is likely to lead to considerable abuse, because it is possible that such social or child welfare agencies or individuals may, by offering monetary inducement, persuade indigent parents to part with their children and then give the children to foreigners in adoption by demanding a higher price, which the foreigners in their anxiety to secure a child for adoption may be willing to pay. But we do not think that if a child is relinquished by its biological parents or is an orphan or destitute or abandoned child in its parent State, there should be any objection to a social or child welfare agency taking the child to another State, even if the object be to give it in adoption, provided there are sufficient safeguards to ensure that such social or child welfare agency does not indulge in any malpractice. Since we are directing that every application of a foreigner for taking a child in adoption shall be routed only through a recognised social or child welfare agency and an application for appointment of the foreigner as guardian of the child shall be made to the court only through such recognised social or child welfare agency, there would hardly be any scope for a social or child welfare agency or individual who brings a child from another State for the purpose of being given in adoption to indulge in trafficking and such a possibility would be reduced to almost nil. Moreover before proposing a child for adoption, the recognised social or child welfare agency must satisfy itself that the child has either been voluntarily relinquished by its biological parents without monetary inducement or is an orphan or destitute or abandoned child and for this purpose, the recognised social or child welfare agency may require the agency or individual who has the care and custody of the child to state on oath as to how he came by the child and may also, if it thinks fit, verify such statement, by directly enquiring from the biological parents or from the child care centre or hospital or orphanage from which the child is taken. This will considerably reduce the possibility of abuse while at the same time facilitating placement of children deprived of family love and care in smaller towns and rural areas. We do not see any reason why in cases of this kind where a child relinquished by its biological parents or an orphan or destitute or abandoned child is brought by an agency or individual from one State to another, it should not be possible to apply for guardianship of the child in the court of the latter State, because the child not having any permanent place of residence, would then be ordinarily resident in the place where it is in the care and custody of such agency or individual. But quite apart from such cases, we are of the view that in all cases where a child is proposed to be given in adoption, enquiries regarding biological parents, whether they are traceable or not and if traceable, whether they have voluntarily relinquished the child and if not, whether they wish to take the child back, should be completed before the child is offered for adoption and thereafter no attempt should be made to trace or contact the biological parents. This would obviate the possibility of an ugly and unpleasant situation of biological parents coming forward to claim the child after it has been given to a foreigner in adoption. It is also necessary while considering placement of a child in adoption to bear in mind that brothers and sisters or children who have been brought up as siblings should not be separated except for special reasons and as soon as a decision to give a child in adoption to a foreigner is finalised, the recognised social or child welfare agency must if the child has reached the age of understanding, take steps to ensure that the child is given proper orientation and is prepared for going to its new home in a new country so that the assimilation of the child to the new environment is facilitated.
We must emphasize strongly that the entire procedure which we have indicated above including preparation of child study report, making of necessary enquiries and taking of requisite steps leading upto the filing of an application for guardianship of the child proposed to be given in adoption, must be completed expeditiously so that the child does not have to remain in the care and custody of a social or child welfare agency without the warmth and affection of family life, longer than is absolutely necessary.
We may also point out that if a child is to be given in intercountry adoption, it would be desirable that it is given in such adoption as far as possible before it completes the age of 3 years. The reason is that if a child is adopted before it attains the age of understanding, it is always easier for it to get assimilated and integrated in the new environment in which it may find itself on being adopted by a foreign parent. Comparatively it may be some what difficult for a grown up child to get acclimatized to new surroundings in a different land and some times a problem may also arise whether foreign adoptive parents would be able to win the love and affection of such grown up child. But we make it clear that we say this, we do not wish to suggest for a moment that children above the age of three years should not be given in inter-country adoption. There can be no hard and fast rule in this connection. Even children between the ages of 3 and 7 years may be able to assimilate themselves in the new surroundings without any difficulty and there is no reason why they should be denied the benefit of family warmth and affection in the home of foreign parents, merely because they are past the age of 3 years. We would suggest that even children above the age of 7 years may be given in inter-country adoption but we would recommend that in such cases, their wishes may be ascertained if they are in a position to indicate any preference. The statistics placed before us show that even children past the age of 7 years have been happily integrated in the family of their foreign adoptive parents.
Lastly, we come to the procedure to be followed by the court when an application for guardianship of a child is made to it. Section 11 of the Guardians and Wards Act, 1890 provides for notice of the application to be issued to various persons including the parents of the child if they are residing in any State to which the Act extends. But, we are definitely of the view that no notice under this section should be issued to the biological parents of the child, since it would create considerable amount of embarrassment and hard ship if the biological parents were then to come forward and oppose the application of the prospective adoptive parent for guardianship of the child. Moreover, the biological parents would then come to know who is the person taking the child in adoption and with this knowledge they would at any time be able to trace the whereabouts of the child and they may try to contact the child resulting in emotional and psychological disturbance for the child which might affect his future happiness. The possibility also cannot be ruled out that if the biological parents know who are the adoptive parents they may try to extort money from the adoptive parents. It is therefore absolutely essential that the biological parents should not have any opportunity of knowing who are the adoptive parents taking the child in adoption and therefore notice of the application for guardianship should not be given to the biological parents. We would direct that for the same reasons notice of the application for guardianship should also not be published in any newspaper. Section 11 of the Act empowers the court to serve notice of the application for guardianship on any other person to whom, in the opinion of the court, special notice of the application should be given and in exercise of this power the court should, before entertaining an application for guardianship, give notice to the Indian Council of Child Welfare or the Indian Council for Social Welfare or any of its branches for scrutiny of the application with a view to ensuring that it will be for the welfare of the child to be given in adoption to the foreigner making the application for guardianship. The Indian Council of Social Welfare of the Indian Council of Child Welfare to which notice is issued by the court would have to scrutinise the application for guardianship made on behalf of the foreigner wishing to take the child in adoption and after examining the home study report, the child study report as also documents and certificates forwarded by the sponsoring social or child welfare agency and making necessary enquiries, it must make its representation to the court so that the court may be able to satisfy itself whether the principles and norms as also the procedure laid down by us in this judgment have been observed and followed, whether the foreigner will be a suitable adoptive parent for the child and the child will be able to integrate and assimilate itself in the family and community of the foreigner and will be able to get warmth and affection of family life as also moral and material stability and security and whether it will be in the interest of the child to be taken in adoption by the foreigner. If the court is satisfied, then and then only it will make an order appointing the foreigner as guardian of the child and permitting him to remove the child to his own country with a view to eventual adoption. The court will also introduce a condition in the order that the foreigner who is appointed guardian shall make proper provision by way of deposit or bond or otherwise to enable the child to be repatriated to India should it become necessary for and reason. We may point out that such a provision is to be found in clause 24 of the Adoption of Children Bill No. 208 of 1980 and in fact the practice of taking a bond from the foreigner who is appointed guardian of the child is being followed by the courts in Delhi as a result of practice instructions issued by the High Court of Delhi. The order will also include a condition that the foreigner who is appointed guardian shall submit to the Court as also to the Social or Child Welfare Agency processing the application for guardianship, progress reports of the child along with a recent photograph quarterly during the first two years and half yearly for the next three years. The court may also while making the order permit the social or child welfare agency which has taken care of the child pending its selection for adoption to receive such amount as the Court thinks fit from the foreigner who is appointed guardian of such child. The order appointing guardian shall carry, attached to it, a photograph of the child duly counter- signed by an officer of the court. This entire procedure shall be completed by the court expediticusly and as far as possible within a period of two months from the date of filing of the application for guardianship of the child. The proceedings on the application for guardianship should be held by the Court in camera and they should be regarded as confidential and as soon as an order is made on the application for guardianship the entire proceedings including the papers and documents should be sealed. When an order appointing guardian of a child is made by the court, immediate intimation of the same shall be given to the Ministry of Social Welfare, Government of India as also to the Ministry of Social Welfare of the Government of the State in which the court is situate and copies of such order shall also be forwarded to the two respective ministries of Social Welfare. The Ministry of Social Welfare, Government of India shall maintain a register containing names and other particulars of the children in respect of whom orders for appointment of guardian have been made as also names, addresses and other particulars of the prospective adoptive parents who have been appointed such guardians and who have been permitted to take away the children for the purpose of adoption. The Government of India will also send to the Indian Embassy or High Commission in the country of the prospective adoptive parents from time to time the names, addresses and other particulars of such prospective adoptive parents together with particulars of the children taken by them and requesting the Embassy or High Commission to maintain an unobtrusive watch over the welfare and progress of such children in order to safeguard against any possible maltreatment, exploitation or use for ulterior purposes and to immediately report any instance of maltreatment, negligence or exploitation to the Government of India for suitable action.
We may add even at the cost of repetition that the biological parents of a child taken in adoption should not under any circumstances be able to know who are the adoptive parents of the child nor should they have any access to the home study report or the child study report or the other papers and proceedings in the application for guardianship of the child. The foreign parents who have taken a child in adoption would normally have the child study report with them before they select the child for adoption and in case they do not have the child study report, the same should be supplied to them by the recognised social or child welfare agency processing the application for guardianship and from the child study report, they would be able to gather information as to who are the biological parents of the child, if the biological parents are known. There can be no objection in furnishing to the foreign adoptive parents particulars in regard to the biological parents of the child taken in adoption, but it should be made clear that it would be entirely at the discretion of the foreign adoptive parents whether and if so when, to inform the child about its biological parents. Once a child is taken in adoption by a foreigner and the child grows up in the surroundings of the country of adoption and becomes a part of the society of that country, it may not be desirable to give information to the child about its biological parents whilst it is young, as that might have the effect of exciting his curiosity to meet its biological parents resulting in unsettling effect on its mind. But if after attaining the age of maturity, the child wants to know about its biological parents, there may not be any serious objection to the giving of such information to the child because after the child attains maturity, it is not likely to be easily affected by such information and in such a case, the foreign adoptive parents may, in exercise of their discretion, furnish such information to the child if they so think fit.
These are the principles and norms which must be observed and the procedure which must be followed in giving a child in adoption to foreign parents. If these principles and norms are observed and this procedure is followed, we have no doubt that the abuses to which inter-country adoptions, if allowed without any safeguards, may lend themselves would be considerably reduced, if not eliminated and the welfare of the child would be protected and it would be able to find a new home where it can grow in an atmosphere of warmth and affection of family life with full opportunities for physical intellectual and spiritual development. We may point out that the adoption of children by foreign parents need not wait until social or child welfare agencies are recognised by the Government as directed in this order, but pending recognition of social or child welfare agencies for the purpose of inter-country adoptions, which interregnum, we hope, will not last for a period of more than two months, any social or child welfare agency having the care and custody of a child may be permitted to process an application of a foreigner, but barring this departure the rest of the procedure laid down by us shall be followed wholly and the principles and norms enunciated by us in this Judgment shall be observed in giving a child in inter-country adoption.
The writ petition shall stand disposed of in these terms. Copies of this order shall be sent immediately to the Ministry of Social Welfare of the Government of India and the Ministry of Social Welfare of each of the State Governments as also to all the High Courts in the country and to the Indian Council of Social Welfare and the Indian Council of Child Welfare. We would direct that copies of this Order shall also be supplied to the Embassies and Diplomatic Missions of Norway, Sweden, France, Federal Republic of Germany and the United States of America and the High Commissions of Canada and Australia for their informations since the statistics show that these are the countries where Indian children are taken in adoption. S.R.
ANNEXURE-'A'
1. Source of Referral.
2. Number of single and joint interviews.
3. Personality of husband and wife.
4. Health details such as clinical tests, heart condition, past illnesses etc. (medical certificates required, sterility certificate required, if applicable),
5. Social status and family background.
6. Nature and Adjustment with occupation.
7. Relationship with community.
8. Description of home.
9. Accommodation for the child.
10. Schooling facilities.
11. Amenities in the home.
12. Standard of living as it appears in the home.
13. Type of neighbourhood.
14. Current relationship between husband and wife.
15. (a) Current relationship between parents and children (if any children).
(b) Development of already adopted children (if any) and their acceptance of the child to be adopted.
16. Current relationship between the couple and the members of each other's families.
17. If the wife is working, will she be able to give up the job ?
18. If she cannot leave the job, what arrangements will she make to look after the child ?
19. Is adoption considered because of sterility of one of the maritial partners ?
20. If not, can they eventually have children of their own ?
21. If a child is born to them, how will they treat the adopted child ?
22. If the couple already has children how will these children react to an adopted child ?
23. Important social and psychological experiences which have had a bearing on their desire to adopt a child.
24. Reasons for wanting to adopt an Indian child.
25. Attitude of grand-parents and relatives towards the adoption.
26. Attitude of relatives, friends, community and neighbourhood towards adoption of an Indian child.
27. Anticipated plans for the adopted child.
28. Can the child be adopted according to the adoption law in the adoptive parents country ? Have they obtained the necessary permission to adopt ? (Statement of permission required.)
29. Do the adoptive parents know any one who adopted a child from their own country or another country ? Who are they ? From where did they fail to get a child from that source ?
30. Did the couple apply for a child from any other source ? If yes, which source ?
31. What type of child is the couple interested in ? (sex, age, and for what reasons.)
32. Worker's recommendation concerning the family and the type of child which would best fit into this home.
33. Name and address of the agency conducting the home study. Name of social worker, qualification of social worker.
34. Name of agency responsible for post placement, supervision and follow up.